Ratio

The Ontario Court of Appeal recently ruled in Quick that when a person pleads guilty to a criminal charge, prior knowledge of the “collateral consequences” of conviction can be crucial to securing the plea as an “informed plea”: 2016 ONCA 95.

Facts

Quick involved a guilty plea by Mr. Quick to a charge of dangerous driving. The plea was part of a resolution involving other charges. The resolution agreement was for a custodial sentence; no driving prohibition to attach to the ‘dangerous’ charge. Mr. Quick’s counsel told him he would lose his licence for one year.

Under s. 259(2) a Canada wide driving prohibition is discretionary for convictions for dangerous driving simpliciter. Mr. Quick did receive a jail sentence and no driving prohibition was imposed. But when the dangerous driving conviction came to the attention of the Ministry of Transportation of Ontario, (hereinafter “MTO”), Mr. Quick’s licence was suspended indefinitely. Mr. Quick had two prior impaired driving convictions on his record from within the last ten years.

The Appeal

At the Court of Appeal, Mr. Quick attested by affidavit that at the time he plead guilty to the ‘dangerous’ charge, he did not know about the consequences he would face vis-à-vis the MTO. Mr. Quick swore that had he known he would lose his licence indefinitely, he would not have plead guilty and would have had a trial. Therefore, he argued, his was not an “informed plea”.

The Decision

Laskin, J. agreed with Mr. Quick, and struck his plea, overturning the conviction. In the decision Laskin, J. sets out a handful of signposts for navigating through the rough terrain ahead, of collateral consequences, knowledge of which can be integral to securing an informed plea.

For collateral consequences to be the type that affect the informed nature of a guilty plea they must be “significant”. “Significance” is a modification on earlier analyses by lower courts where the concept of “legally relevant” collateral consequences was invoked to decide those that count.

After Quick, “significant” collateral consequences are identified by looking subjectively from the point of view of the accused for what matters. Mr. Quick was a truck driver by trade, so an indefinite licence suspension by the MTO would be “significant” to him. “Significant” to an individual are consequences, knowledge about which would change a plea to a trial.

Quick’s collateral consequences for the Crown and courts

What is curious and perhaps cumbersome about the Quick way forward is the filter for significance in consequences is bound up with the individual accused, while the interests in ensuring knowledge about penalties – to secure pleas – falls to the Crown and to the courts.

Moreover, while the type of collateral consequences likely significant in a given case might be possible to identify, such as transportation, or immigration based consequences, the particular impact of a conviction may be discretionary not automatic, or unable to be determined from outside the collateral agency or department. For example, the Crown would not likely know the specific immigration status and history of an individual canvassing a plea agreement, and therefore not be able to convey the potential collateral immigration consequences of entering a plea, nor likewise the policies of transportation ministries in other provinces than the one where a plea negotiation is taking place.

Comment

If the collateral consequences are to qualify as significant, and the details of collateral penalties in every given case are to be so individualized in the “informed” analysis - and so closely scrutinized in hindsight - then shouldn’t it be the individual himself or herself, who is charged with the foresight?